Cox v. Linder , 191 Ga. 790 ( 1941 )

The petition for injunction against the Commissioner of Agriculture, to restrain him from enforcing a statute prohibiting and making penal the sale or offering for sale of certain described products, did not state a cause of action, and was properly dismissed on demurrer.

No. 13466. MARCH 21, 1941. REHEARING DENIED APRIL 2, 1941. The petition of Earle Cox against Columbus Roberts as Commissioner of Agriculture made out substantially the following case: He "is a broker and engaged in selling products manufactured by various manufacturing concerns located throughout the United States to wholesalers who sell or desire to sell said products to retailers and consumers generally." He "desires in the course of his business as broker to sell in the State of Georgia a certain food product known by the trade name of Richwhip," and has on hand a large quantity of this product of a value in excess of $500. "Richwhip is a mixture or compound of pure sweet skimmed milk and pure sweet, highly refined coconut oil, vitamin A and B concentrate, and pure vegetable coloring matter, evaporated to such an extent that the resulting product contains no less than 20% milk solids other than fat, 6% fat, and not less than 2000 U.S. P. XI units of vitamin A, and not less than 400 U.S.P. XI units of vitamin D to each sixteen ounce can," and "is designed and intended to be used in coffee, cooking, baking and other culinary purposes. . . It is a pure, wholesome, healthful growth producing food product, containing nothing deleterious or harmful to health. . . It is not an imitation of milk, cream or skimmed milk or any of the derivatives thereof, inasmuch as it is a golden yellow color, readily distinguishable from milk, cream, evaporated or condensed milk." The defendant Commissioner of Agriculture of the State of Georgia considers that the sale, etc. of Richwhip is prohibited by the terms of the Code, § 42-511, as follows: "It shall be unlawful to sell, keep for sale, or offer for sale any condensed or evaporated milk, concentrated milk, sweetened condensed milk, sweetened evaporated milk, sweetened concentrated milk, sweetened evaporated skimmed milk, or any of the fluid derivatives of any of them, to which shall have been added any fat or oil other than milk fat, either under the name of said products or articles or the derivatives thereof, or under any fictitious or trade-name whatsoever," and "has informed plaintiff that if he or his customers sell, keep for sale, or offer for sale Richwhip in the State of Georgia, that he, the said plaintiff, and his said customers, will be prosecuted under the provisions of said law." The "plaintiff has no adequate remedy at law, inasmuch as neither he nor his dealers dare risk the heavy penalties of the law and the repeated and frequent prosecutions to which he or they would be subjected." Unless plaintiff is "permitted to sell and dispose" of that which he has on hand, "his loss will be great, immediate and irreparable," and "if defendant proceeds to enforce said statute as announced," it will entirely destroy the business which he contemplates building up in the State in connection therewith. "If plaintiff and his dealers should sell Richwhip and defendant should carry out his declared intention of prosecuting them under the above quoted statute, it would result in a multiplicity of suits." The plaintiff further alleged that if applicable to Richwhip the statute is unconstitutional and void for various reasons. The prayers were in substance for temporary and permanent injunction "restraining . . the defendant . . from interfering in any manner with the distribution and sale by plaintiff of said product in the State of Georgia." The petition was dismissed on demurrer, and the plaintiff excepted.

Since the suit was brought to this court the term of office of the defendant as Commissioner of Agriculture has expired. His successor in office has been made a party in accordance with the act of the General Assembly approved March 20, 1941 (Ga. L. 1941, p. ___). The plaintiff does not, in our opinion, make out such a case of present or impending injury to his legal rights as would authorize a court of equity to intervene in his behalf by process of injunction. The case made, when viewed most strongly against him, is hardly more than this: He desires to sell and establish a clientele in this State for a product known as Richwhip and to that end he has entered into a sales contract with the manufacturer of such product and actually has on hand a quantity thereof of the approximate value of $500, but before proceeding to sell Richwhip or offer it for sale he desires a judgment declaring Code § 42-511 with its concomitant misdemeanor penalty (Code, § 42-9913) unconstitutional in so far as it may apply to this product. This adjudication is sought upon the basis of a prayer, in substance, that the defendant be enjoined "from interfering in any manner with the distribution and sale by plaintiff of said product in the State of Georgia." The plaintiff does not expressly allege that he owns the quantity of Richwhip alleged to be on hand, or that, if not, he would actually benefit under his contract with the manufacturer by its sale. Nor is any showing made that the defendant has in fact molested the plaintiff or has in anywise sought to interfere with his selling or offering for sale Richwhip, other than to inform him that he would enforce the law, and if and when he or his customers sold or offered such product for sale they would be duly prosecuted, but this is no more than what the plaintiff should have otherwise known, since the duty of enforcing this law is especially enjoined on the defendant by the Code, § 42-603. The plaintiff shows by his allegations that he has not placed himself in a position so that the statute might be enforced against him. Under such circumstances the effect of the petition is but to seek a declaratory judgment as to the validity of the statute. It seems apparent that the principal concern and apprehension of the plaintiff is in reference to a criminal prosecution under the statute and that this suit arises out of his own reluctance to subject himself to a charge of violating the statute in order to bring it to a complete and decisive test. Under the views expressed the petition stated no cause of action and was properly dismissed on demurrer. See Cathcart Van c. Storage Co. v.Atlanta, 169 Ga. 791 (151 S.E. 489); Bowden v. GeorgiaPublic Service Com., 170 Ga. 505 (153 S.E. 42); GeorgiaPublic Service Com. v. Parcel Delivery Co., 177 Ga. 600 (170 S.E. 800); Howard v. Briarcliff Zoological Cor., 178 Ga. 595 (173 S.E. 391); Zaring v. Adams, 188 Ga. 97 (3 S.E.2d 635). This holding is made without regard to the question of whether if the criminal prosecution were shown to be imminent equity would under the principles of the Code, § 55-102, take jurisdiction.

Judgment affirmed. All the Justices concur.

ATKINSON, Presiding Justice, is of the opinion that there should be added to the last statement appearing immediately above the following: "As to which no opinion is intimated."